Raquet v. Braun

• Decision Date: 05 June 1997
• Citation: 681 N.E.2d 404,659 N.Y.S.2d 237,90 N.Y.2d 177
• Parties: , 681 N.E.2d 404 Frank P. RAQUET et al., Plaintiffs, v. Carol BRAUN, et al., Respondents, W.N.Y. Carpet Factory Outlet, Inc., et al., Appellants. Frank P. RAQUET, et al., Plaintiffs, v. Clifford A. ZANE, et al., Defendants, and Leonard J. Zane, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 237

659 N.Y.S.2d 237

90 N.Y.2d 177, 681 N.E.2d 404

Frank P. RAQUET et al., Plaintiffs, v. Carol BRAUN, et al., Respondents, W.N.Y. Carpet Factory Outlet, Inc., et al., Appellants.

Frank P. RAQUET, et al., Plaintiffs, v. Clifford A. ZANE, et al., Defendants, and Leonard J. Zane, Appellant.

Court of Appeals of New York.

June 5, 1997.

Quackenbush, Cessario & Hamlin, Buffalo (John J. Quackenbush, Jr., of counsel), for W.N.Y. Carpet Factory Outlet, Inc., and others, appellants.

Quinn, McGarry & Caffery, P.C., Buffalo (David C. Quinn, of counsel), for Leonard J. Zane, appellant and third-party defendant-appellant.

Roach, Brown, McCarthy, Gruber & Chiari, P.C., Buffalo (J. Mark Gruber and Elizabeth G. Redman, of counsel), for Benito Oliveri, respondent.

Lustig & Brown, L.L.P., Buffalo (Robert A. Baker and James Duggan, of counsel), for Carol Braun and others, respondents and third-party plaintiffs-respondents.

OPINION OF THE COURT

TITONE, Judge:

In Zanghi v Niagara Frontier Transp. Commn. (85 N.Y.2d 423, 626 N.Y.S.2d 23, 649 N.E.2d 1167), we held that the cause of action for injured firefighters that was authorized by General Municipal Law former § 205-a is available only against parties who were in possession or control of the premises at the time the accident occurred. ¹ This appeal, which involves the parties to one of the companion cases in Zanghi, raises the question of whether a person properly held liable under former section 205-a may seek indemnification or contribution from parties who were not in possession or control of the premises but who were allegedly responsible, in whole or in part, for the accident. We conclude that a third-party action for indemnification or contribution lies in these circumstances, even though the injured firefighter would not have a direct cause of action against the third-party defendant.

As set forth in our earlier opinion (85 N.Y.2d, at 437, 626 N.Y.S.2d 23, 649 N.E.2d 1167), one firefighter (Mitchell Spoth) was killed and another (Frank Raquet) was injured when the canopy roof on a building addition and a portion of the addition's masonry wall collapsed outward during the course of a November 1984 fire. At the time of the fire, the building was owned by defendant Leonard Zane and occupied by defendant lessees W.N.Y. Carpet Factory Outlet, Inc., Kenny Carpets, Inc. and Kenny Enterprises, Inc.

Raquet and Spoth's representative sued Zane, the tenant defendants and the contractors who had designed and built the building's addition (Carol Braun, John Braun, J.M. Braun Builders, Inc. and Benito Olivieri). Among the asserted causes of action were claims based on General Municipal Law former § 205-a for violations of State and local building code provisions. The tenant defendants asserted cross claims for indemnification and contribution against the contractor defendants, and defendant Zane counterclaimed against all of the contractor defendants except defendant Benito Olivieri.

On appeal to this Court from an order dismissing the plaintiffs' claims against the building owner and the contractor defendants, we reinstated the General Municipal Law § 205-a causes of action against the owner, holding that "the alleged building code violations may * * * create firefighting hazards upon which section 205-a liability may be based" (85 N.Y.2d, at 443, 626 N.Y.S.2d 23, 649 N.E.2d 1167). We stated, however, that although the building owner could be held directly liable under the statute, the defendant contractors could be held liable "only if they were in control of the premises 'at the time of [the firefighters'] injury' " (id., at 445, 626 N.Y.S.2d 23, 649 N.E.2d 1167, quoting General Municipal Law former § 205-a). Accordingly the dismissal of the plaintiffs' claims against the defendant contractors was upheld. Finally, we also stated that, as tenants in possession at the time of the fire, the tenant defendants were "parties in control of the premises against whom [statutory] liability may be asserted" (85 N.Y.2d, at 445, n. 2, 626 N.Y.S.2d 23, 649 N.E.2d 1167). ²

Following our decision, defendant Zane and the tenant defendants moved in the Supreme Court for permission to convert their cross claims and counterclaims against the contractors to third-party complaints. Defendant Zane, who had not previously asserted a claim against defendant contractor Olivieri, also made an oral motion to amend his answer to include a "claim over" against Olivieri, who had not been named in Zane's original answer. The contractor defendants opposed these motions and cross-moved for dismissal of all remaining claims against them, arguing, among other things, that the Court of Appeals holding absolving them of liability to plaintiffs insulated them from liability to any party under CPLR article 14. The Supreme Court denied Zane's and the tenant defendants' motions and granted the contractor defendants' cross motions. The Appellate Division affirmed the Supreme Court's order, without opinion, and this Court subsequently granted the aggrieved appellants leave to take a further appeal.

Initially, we note that our prior decision in this case did not constitute a dismissal on the merits of the cross claims against the contractor defendants. Our disposition was limited to a holding that the plaintiff firefighters could not recover against the contractor defendants. The viability of the indemnification and contribution claims against those parties was not raised in either of the courts below or in our Court, and nothing in our opinion forecloses those claims. ³

As to the merits of those claims, we begin with the well-established principle that a defendant may seek contribution from a third party even if the injured plaintiff has no direct right of recovery against that party, either because of a procedural bar or because of a substantive legal rule (Klinger v. Dudley, 41 N.Y.2d 362, 393 N.Y.S.2d 323, 361 N.E.2d 974; Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288; cf., L 1996, ch 635 [amending Workers' Compensation Law § 11] ). A contribution claim can be made even when the contributor has no duty to the injured plaintiff (Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 559, 583 N.Y.S.2d 957, 593 N.E.2d 1365; Garrett v. Holiday Inns, 58 N.Y.2d 253, 261, 460 N.Y.S.2d 774, 447 N.E.2d 717). In such situations, a claim of contribution may be asserted if there has been a breach of a duty that runs from the contributor to the defendant who has been held liable (see, Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 568, n. 5, 516 N.Y.S.2d 451, 509 N.E.2d 51; Garrett v. Holiday Inns, supra, at 261, 460 N.Y.S.2d 774, 447 N.E.2d 717; Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268; see also, Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 71 N.Y.2d 599, 528 N.Y.S.2d 516, 523 N.E.2d 803).

The "critical requirement" for apportionment by contribution under CPLR article 14 is that "the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought" (Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., supra, at 603, 528 N.Y.S.2d 516, 523 N.E.2d 803). Thus, contribution is available "whether or not the culpable parties are allegedly liable for the injury under the same or different theories" (id., at 603, 528 N.Y.S.2d 516, 523 N.E.2d 803; see, Board of Educ. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 28, 523 N.Y.S.2d 475, 517 N.E.2d 1360), and the remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors (see, Board of Educ. v Sargent, Webster, Crenshaw & Folley, supra, at 27, 523 N.Y.S.2d 475, 517 N.E.2d 1360; Schauer v. Joyce, 54 N.Y.2d 1, 5, 444 N.Y.S.2d 564, 429 N.E.2d 83; Siegel, N.Y. Prac § 172, at 261 [2d ed] ).

Similarly, the key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is "a separate duty owed the indemnitee by the indemnitor" (Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690, 555 N.Y.S.2d 669, 554 N.E.2d 1257). The duty that forms the basis for the liability arises from the principle that "every one is responsible for the consequences of his own negligence, and if another person has been compelled * * * to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him" (Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N.Y. 461, 468, 31 N.E. 987; see, McDermott v. City of New York, 50 N.Y.2d 211, 216-217, 428 N.Y.S.2d 643, 406 N.E.2d 460).

Given these principles, the argument of the defendant contractors here must be rejected. The defendant contractors' position rests wholly on the premise that their exoneration from liability to the injured firefighters under General Municipal Law former § 205-a precludes them from having any liability at all arising from the collapse of the building during the November 1984 fire. However, the limitations of the statutory cause of action available to injured firefighters do not affect the right of parties held liable pursuant to that cause of action to seek contribution and/or indemnification from those whose carelessness was, in whole or in part, the cause of the harm. This Court has previously recognized causes of action for contribution or indemnification against parties who were insulated from liability to the injured plaintiff because of a lack of duty (see, Sommer v. Federal Signal Corp., supra; Garrett v. Holiday Inns, supra ), procedural bars and special defenses (see, Klinger v. Dudley, supra ) and the statutory defense available to employers in cases involving workers' compensation (see, Dole v. Dow Chem. Co., supra; see also, Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567). The same result should obtain here.

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